Orlando Sports Stadium, Inc. v. Sentinel Star Co.

• Decision Date: 18 July 1975
• Docket Number: No. 74--483,74--483
• Citation: 316 So.2d 607
• Parties: ORLANDO SPORTS STADIUM, INC., et al., Appellants, v. SENTINEL STAR COMPANY, a Delaware Corporation et al., Appellees.
• Court: Florida District Court of Appeals

Page 607

316 So.2d 607

ORLANDO SPORTS STADIUM, INC., et al., Appellants, v. SENTINEL STAR COMPANY, a Delaware Corporation et al., Appellees.

No. 74--483.

District Court of Appeal of Florida, Fourth District.

July 18, 1975.

Rehearings Denied Aug. 15, 1975.

Stephen P. Kanar of Fishback, Davis, Dominick & Simonet, Orlando, for appellants.

William G. Mateer of Mateer & Harbert, Orlando, for appellees.

JOHNSON, W. CLAYTON, Associate Judge.

This is an appeal from the entry of a final judgment dismissing with prejudice appellants' amended complaint which sought damages from appellees in count one: for malicious interference with business, count two: for libel and count three: for conspiracy to interfere with business relations and to libel.

Appellants' complaint is based upon some twenty-five newspaper articles published by appellees over a period exceeding one year and which articles appellants allege to be false, defamatory and calculated to damage the appellants' business and reputation as to their ownership and operation of the Orlando Sports Stadium. Said newspaper articles recited activities incident to rock concerts performing in the Orlando Sports Stadium.

After filing their initial complaint on September 15, 1971, appellants, in an apparent attempt to comply with Fla.Stat. 770.01, ¹ by letter dated September 29, 1971, forwarded to certain appellees a notice and retraction demand as required by that statute. Appellants then, on November 16, 1971, filed an amended complaint alleging, for the first time, their compliance with the statute.

On January 10 and January 24, 1972, appellants filed further amendments to their amended complaint and after a February 4, 1972 order dismissing their amended complaint filed another amended complaint on February 22, 1972, which amended complaint, now before this court on appeal, was dismissed pursuant to appellees' March 10, 1972 motion, and a final judgment entered thereon by the trial court; however, said dismissal and final judgment were subsequently vacated when, upon appellants' interlocutory appeal, this court determined that the trial judge should have disqualified himself from the case. ²

After remand to the trial court and reassignment of this case, appellants, on August 16, 1973, filed a notice of taking the deposition of one of the appellees. Also, on August 20, 1973, appellants instituted a new action against appellees by filing a complaint virtually identical to the last amended complaint filed in this cause and styled 'Orlando Sports Stadium, Inc., et al. vs. Sentinel Star Company, et al., case number 73--5749.'

Responding to the aforementioned deposition notice, appellees filed a motion for protective order on the grounds that: (a) their March 10, 1972 motion to dismiss was still pending and should be ruled upon before appellees were required to submit to said deposition, and (b) that the propriety of appellants instituting a second identical action should be determined before appellees may be deposed.

Thereafter, the trial court entered its September 12, 1973 protective order postponing until further order of the court appellants' deposition discovery; a November 21, 1973 order granted appellees' motion to dismiss, no reasons cited, but allowing appellants 30 days to file an amended complaint; and on March 13, 1974, the trial court entered its final judgment dismissing the action with prejudice due to appellants 'having declined to further amend their complaint.' Said orders and final judgment are the subject of this appeal.

The numerous news articles attached to the instant amended complaint are the same publications upon which appellants base their claim for intentional interference in count one and for libel in count two. The thrust of appellants' complaint in both counts is that said news articles were injurious to appellants' reputation. The appellants contend that counts one and two are two separate causes of action. This court cannot agree with such contention as such actions are nothing more than separate elements of damage flowing from the alleged wrongful publications. 'Florida courts have held that a single wrongful act gives rise to a single cause of action, and that the various injuries resulting from it are merely items of damage arising from the same wrong', Easton v. Wier, Fla.App., 167 So.2d 245.

As stated by the court in Morrison v. National Broadcasting Co., 19 N.Y.2d 453, 280 N.Y.S.2d 641, 227 N.E.2d 572, 'We look for the reality, and the essence of the action and not its mere name.' A contrary result might very well enable plaintiffs in libel to circumvent the notice requirements of Fla.Stat. 770.01 by the simple expedient of redescribing the libel action to fit a different category of intentional wrong.

Turning to the conspiracy count three of the complaint, 'The gist of a civil action for conspiracy is not the conspiracy itself but the civil wrong which is alleged to have been done pursuant to the conspiracy. Therefore, whether the complaint involved in this appeal alleges facts sufficient to state a cause of action must be determined from the standpoint of whether the complaint states a cause of action in * * * libel', Loeb v. Geronemus, Fla., 66 So.2d 241, 243 (citations therein omitted).

We find it unnecessary to consider either the numerous amendments to the initial complaint, the order with no reasons specified for dismissing appellants' last complaint or their failure to further amend as permitted by said order, but direct our attention to appellees' claim that the cause of action is insufficient due to appellants' failure to serve the written notice requirement of Fla.Stat. 770.01 before instituting this libel action. A cause of action must exist and be complete before an action can be commenced or, as sometimes stated, the existence or non-existence of a cause of action is commonly dependent upon the state of facts existing when the action was begun. As a general rule the plaintiff may not be permitted to cure the defect of non-existence of a cause of action when suit was begun, by amendment of his pleadings to cover subsequently accruing rights, 1 Am.Jur.2d, Actions, Sec. 58.

In Hasam Realty Corporation v. Dade County, 178 So.2d 747 (1965), wherein the plaintiff appealed a final order dismissing its amended complaint, the 3rd D.C.A. stated:

'If a plaintiff has no valid cause of action on the facts existing at the time of filing suit, the defect cannot ordinarily be remedied by the accrual of one while the suit is pending. We do not find that this rule has been changed by the Rules of Civil Procedure which provide for amended or supplemental pleadings. Rule 1.15(d) and (e) Florida Rules of Civil Procedure, 30 F.S.A.'

Further,

Our present 'Rule 1.190 is the same as ...